Four:
Emily Murphy

Person
For All Seasons

Thestature of Emily Murphy
as a Western Canadian giant
has grown in recent years.
A recent biographer, Christine
Mander, in Emily Murphy:
Rebel, concludes she
was an individual "for all
seasons" and this is probably
the best explanation. Beyond
any doubt, she was unique,
someone whose inner force
no part of Canada or any
nation produces in either
sex more than once or twice
in a generation. Among her
many roles were those of
a judge; wife, mother and
neighbour, crusader for
equal rights; author and
journalist; and social reformer
extraordinaire. Her story
embodies a large measure
of the determination exhibited
by so many individuals who
settled in the West.

She
was born Emily Ferguson
in 1868 at Cookstown, about
60 miles north of Toronto,
and raised in a tradition-minded
and prosperous home. Her
father, Isaac, had arrived
from Ireland at the age
of twelve, stepping ashore
with his mother, who had
been widowed on the trip
across the Atlantic, and
five other children. Her
mother, Emily Gowan, was
also from an Irish-Canadian
family, whose patriarch,
Ogle R. Gowan, was a twenty-seven
year member of the provincial
parliament and the founder
of the Orange Order in Canada.

All
of the six Ferguson children
were raised on an estate
with access to ponies and
other luxuries. Their parents
insisted on equal sharing
of household duties, and
all were taught to write
and speak well. Emily particularly
enjoyed tree climbing, sucker
and sunfish fishing and
cricket. She was known as
"Sunshine." Three of her
brothers would become lawyers
and the fourth, Gowan, a
doctor. She performed as
a youthful actress in their
Conservative home in front
of visitors such as Sir
John A. Macdonald and Sir
Charles Tupper. Mander sums
up her early family life
as being one of "affluence,
accomplishment, affection
and high ideals."

At
fifteen, Emily was sent
as a boarder to the fashionable
Bishop Strachan School for
Girls in Toronto. She was
homesick initially, but
soon became an earnest and
capable student, assisted
considerably by an extraordinarily
good memory which would
serve her well throughout
her life. One day, two of
her brothers came by the
school to introduce her
to Arthur Murphy, the man
who would become her future
husband, who was eleven
years her senior. Murphy,
who was studying for the
Anglican ministry, had decided
earlier as a neighbour of
the Fergusons that he wanted
to marry Emily. He instigated
the first meeting and then
persisted in his efforts
to win her. They met as
frequently as possible despite
the school rules forbidding
such meetings. On their
first encounter, he said,
"Hurry and grow up so! can
marry you." Although Emily
evidently continued to fall
in love with others over
the next four years, she
would insist many years
afterwards that "there was
never anyone, really, but
Arthur." They were married
at an elegant wedding the
summer after she graduated
and established their first
of several homes near Lake
Simcoe where Arthur had
his first parish church.

The
nineteen-year-old bride
threw herself into the role
of minister’s wife: Bible
classes, the presidency
of the missionary society,
playing the organ and organizing
bazaars. She was, as she
later noted, "acquiring
a stability that fitted
me for half a dozen other
duties." Over the next decade,
there were other moves for
the family in south-western
Ontario. At a church in
Chatham, which had earlier
been a refuge for blacks
fleeing American slavery,
she spoke out for understanding.
Three daughters had arrived
by the time they left Chatham,
Kathleen, Evelyn and Madeleine,
but Madeleine, who had been
born prematurely when her
mother walking down the
stairs tripped over her
nightgown, left heartbroken
parents when she died at
nine months.

The
next move was to a church
at Ingersoll, where the
Murphys’ fourth daughter,
Doris, was born. Emily,
now 25 years old, was becoming
more independent. She joined
firmly on the affirmative
side in a raging controversy
on the issue of women serving
on church vestries, arguing
that "women could contribute
much to the administrative
body of the church." Also
at about this time she entered
what she herself termed
"the loneliest place on
the curve of her religious
life," when she found herself
deeply involved in a skeptical
phase of her intellectual
development. Her honesty,
which was characteristic
of her entire approach to
life, continued both to
bind people to her with
hoops of iron and to vex
her opponents.

She
began to use her gifts with
words and prodigious memory
to help Arthur with his
sermons. Life for the family
was full and good until
the day Arthur’s bishop
asked him to become a missionary
in Ontario without either
a set salary or a home.
For the next two years,
the entire family moved
about from parish to parish.
With time on her hands,
Emily began to nibble on
sweets, little knowing that
diabetes would later strike
her and probably contribute
to her death. The missionary
years opened her eyes to
the very bad social conditions
of the Ontario poor. She
began to write about what
she saw in her diaries;
these entries would later
became the basis for numerous
articles.

In
mid-1898, the Murphys eagerly
accepted an invitation to
preach in England. On board
ship, while enduring patronizing
comments about Canadians
from English and American
passengers, Emily resolved
that in future she would
write under the name "Janey
Canuck," that being the
female equivalent of "Johnny
Canuck." In Liverpool and
later in the East End of
London, she was deeply disturbed
by even worse conditions
than she had seen in south-western
Ontario: prostitutes, beggars,
and "poverty-distorted children."

In
late 1899, the Murphy family
crossed back to Canada.
Emily was extremely happy
to be home: … once more
in the first, best country,
God’s fairest gift to man
-- the land of the Maple."
The couple bought a home
in Toronto, and Arthur continued
to do missionary work with
a comfortable salary paid
from England. A mood of
buoyancy came to both Canada
and Britain with the succession
of the dour Queen Victoria
by her fun-loving son, Edward.
Emily’s first book, The
impressions of Janey Canuck
Abroad, was published
and became an immediate
success in Britain and Canada.
She soon became a regular
contributor to a popular
magazine, National Monthly
of Canada, and eventually
became Women’s Editor. One
piece she wrote at the time
pleaded for the suspension
of the ban on immigrants
to Canada from China.

In
1902, Arthur and then Emily
contracted typhoid, which
brought them close to death.
But both recovered and Arthur
secured a church near his
family’s farm where his
mother sought to restore
some meat to his bones.
While he was gone, six-year-old
Doris caught the dreaded
diphtheria and died just
after asking her mother
to sing her favourite hymn,
"The Little Lord Jesus."
Her mother’s grief knew
no limits when they buried
her next to Madeleine at Cookstown.

With
the catastrophe a little
behind them, the Murphys
accepted a medical opinion
that Arthur should seek
exercise, fresh air, and
a changed environment. Emily
reluctantly agreed to move
to Swan River (population
1,300) in north-western
Manitoba where Arthur had
earlier bought some timberland.
Leaving their remaining
two girls at a boarding
school in Toronto, the couple
in 1903 joined the international
sea of humanity sweeping
into the Prairies. Her first
impressions of bustling
Winnipeg, the urban gate
through which virtually
every newcomer was then
obliged to enter Western
Canada, were extremely favourable.

She
wrote: "How the sun shines
here in Winnipeg! One drinks
it in like wine. And how
the bells ring! It is a
town of bells and light
set in a blaze of gold.
Surely the West is golden
-- the Sky, flowers, wheat,
hearts.

"Winnipeg
is changing from wood to
stone. She is growing city-like
in granite and asphalt.
Hitherto, banks and hotels
were run up overnight, and
had to pay for themselves
in the next twenty-four
hours.

"Winnipeg
has something western, something
southern, something quite
her own. She is an up-and-doing
place. She has swagger,
impelling arrogance, enterprise,
and an abiding spirit of
usefulness....

"On
the streets of Winnipeg,
there are people who smile
at you in English, but speak
in Russian. There are rushful,
pushful people from ‘the
States’, stiff-tongued Germans,
ginger-headed Icelanders, Galacians, Norwegians, Poles
and Frenchmen, all of whom
are rapidly becoming irreproachably
Canada. In all there are
sixty tongues in the pot....

"Every
Mother’s son of them is
a compendium of wordly wisdom
and a marvel of human experience.
What more does any country
want?"

Swan
River, at the time two days
by train beyond Winnipeg,
must have been a severe
disappointment for the newcomers,
but Emily tried everything
-- even duck shooting. One
day at forty-eight below
zero, they set forth in
a horse-drawn sleigh to
inspect the timber field,
spending the night at a
Doukhobor village. While
in camp, Emily met a number
of Cree and Chippewa Indians,
gaining a respect for their
independence and forest
skills.

Gradually,
Arthur’s timber operation
began to produce some income
and he made more money in
land speculations. Emily
began to review books for
The Winnipeg Tribune
newspaper as well as
sending pieces to The
National Monthly. Her
work in helping to manage
the timber operation, which
soon included five employees
and seventeen horses, kept
her away from the "Votes
for Women" issue which in
1906 was beginning to preoccupy
fellow western women, such
as Winnipeg’s Nellie McClung.
Four years later, when Arthur
decided to seek new business
opportunities further west
in Edmonton, Emily was not
in the least sorry. She
had experienced enough of
bitter cold, wolves and
bears. She longed for the
"sweet security of streets,
the pushing crowds, the
call of the latest editions,
the velvety sweep of feet,
the whir of the automobile,
the glare of the stage,
the long rows of horses,
and all else that once I
hated."

The
years 1907-1916 in Edmonton
were golden ones for the
entire Murphy family, and
Emily became a convinced
Westerner. As the new capital
of a new province, Edmonton’s
population was diverse and
growing rapidly from the
eighteen thousand there
when the Murphys arrived.

Arthur
engaged in coal mining and
later speculated in city
real estate. Kathleen and
Evelyn were rapidly growing
up when their mother first
took aim at the dower issue.
Under the Alberta law of
the time, a husband could
legally sell his land and
pocket the proceeds without
sharing a dime with his
wife and children. Emily
quickly marshalled the facts
of the issue, wrote articles
and otherwise started the
campaign rolling across
the province. Several times,
the provincial legislature
turned down a Dower Bill
to award a third of common
property in a marriage to
wives, but finally passed
it in 1911. Many Albertans
were delighted with the
success of Emily’s campaign.

During
this time and until 1912,
she was literary editor
of The Winnipeg Telegram.
She also completed in
1910 her next book, Janey
Canuck in the West, which
was such a success that
it remains in print today.
Becoming the first woman
member of the Edmonton hospital
board, she filed a devastating
report on the conditions
of a local hospital. She
became president of the
Canadian Women’s Press Club.
She published two more books,
Open Trails in 1912,
and Seeds of Pine in
1914, both of which sold
well. She later reported
for Collier’s Magazine
on a five-day steamer
trip up the Athabasca river
to Lesser Slave Lake. In
1911, she became a good
friend of Emmeline Pankhurst,
the English suffragette,
during her second North
American speaking tour.
When Nellie McClung, founder
of the Political Equality
League in Winnipeg, moved
to the Alberta capital in
1914, she and Emily became
friends and allies in the
cause. They had the satisfaction
in 1916 of seeing Alberta
become the third province
in the nation to provide
the franchise to women.
The Canadian frontier was
establishing itself as fertile
soil for democratic reforms.

In
1916, urged by the local
Council of Women, Emily
went to the office of the
Alberta Attorney General, C.W. Cross, to request him
to establish a women’s criminal
court presided over by a
woman. Soon afterwards,
she was appointed by the
provincial Liberal government
of Arthur Sifton to be the
first female judge in what
is now the Commonwealth.
Congratulations flowed into
an ecstatic Murphy home
from seemingly everywhere.
The new police magistrate
was soon studying books
of court procedure and law.
Her first anxious day in
court, which she later said
with her characteristic
good humour, was "as pleasant
an experience as running
rapids without a guide,"
was a unique experience.
The police and lawyers,
being unsure what to call
her, mostly called her ‘‘Sir.’’

On
that very first day, defense
counsel Eardley Jackson
objected to her right to
hear his client’s case because
she was not ‘a person’ within
the meaning of the relevant
statutes. He was in effect
arguing that the nineteenth
century English common law,
which astonishingly had
ruled that women were persons
in matters of pains and
penalties but not in matters
of rights and privileges,
barred her from being a
judge. Emily noted the objection
without ruling on it and
heard his case. The Alberta
Supreme Court later ended
the dispute, but only within
the provincial boundaries,
when it ruled that no judge
could be disqualified from
holding public office on
account of sex.

This
was scarcely the end of
the obstacles to her successful
judicial career in the Women’s
Court. People opposed to
her appointment created
frequent annoyances. For
example, she would arrive
at her court to find that
it was booked to another
judge. She faced all such
attacks with dignity, firmness
and good humour, knowing
that her enemies were hoping
for an over-reaction or
other mistake with which
they could berate both her
and all of her sex as judges.

She
was by no means unduly lenient
with accused members of
her own sex. She spoke bluntly
about the difficulty in
obtaining convictions against
female law-breakers, noting
that often "the woman’s
part is that of complicity.
She instigates the crime,
receives the goods after
the man has stolen them,
procures the girl for his
immoral purposes, or carries
the noxious drugs which
he disposes of. It was probably
an observer of this combination
who gave expression to the
odious dictum ‘cherchez
la femme’." In time, she
became a good judge.

Another
problem she met in the courts,
narcotic drug trafficking,
affected her deeply. Her
studies on the subject,
which indicated that Canada
on a per capita basis led
the world in 1919 in narcotic
drug trafficking, became
a series of articles in
Maclean’s magazine,
subsequently published together
in 1922 as The Black
Candle. It became a
text book in the Narcotics
Division of the League of
Nations.

Her
best known crusade was establishing
that women were persons
for the purpose of appointments
to the Senate. The British
North America Act provided
that "Properly qualified
persons may from time to
time be summoned to the
Senate." On what constituted
qualification, it said only
that a senator must "be
a British citizen, at least
thirty years of age, and
possess four thousand dollars
in real property." As absurd
as it now seems, she and
her supporters were obliged
to do battle off and on
for twelve full years before
triumphing. The first skirmish
occurred in 1917 when she
allowed some Alberta women
to put her name forward
as a candidate for the Senate
to Prime Minister Robert
Borden. Borden rejected
both her name and those
of other women on the basis
that under Canadian law
women were simply not "persons."
In 1921, his successor as
prime minister, Arthur Meighen,
rejected a request by the
Montreal Women’s Club to
appoint Emily to the Senate,
saying that government lawyers
said that it was impossible
to nominate a woman. In
1922, she herself wrote
to the new prime minister,
Mackenzie King, asking for
an appointment. King did
nothing but declare his
good intentions about a
possible amendment to the
BNA Act during his second
period as prime minister
between 1926 and 1930.

In
1927, one of Emily’s lawyer
brothers, Bill, noticed
that a provision of the
Supreme Court of Canada
Act then gave to any five
interested persons the right
to petition the federal
government to seek a ruling
from the Supreme Court of
Canada on a constitutional
issue. The four others she
recruited were Nellie McClung
(a school teacher, homemaker,
MLA for five years until
defeated for her pro-prohibition
stand in 1926, author, and
comrade-in-arms with Emily
on issues until her move
to Calgary), Louise McKinney
(the first female MLA in
the Commonwealth and a crusader
against alcohol and tobacco),
Henrietta Edwards (a social
reformer and author of two
books on the legal status
of women), and Irene Parlby
(a former president of the
United Farm Women of Alberta,
MLA and Minister without
portfolio in Alberta for
fourteen years).

"The
Alberta Five," as they came
to be known, signed the
petition which would soon
be known throughout Canada,
in the Murphy home in the
late summer of 1927. "Does,"
it asked simply, "the word
persons in section 24 of
the BNA Act of 1867 (re
senate appointments) include
female persons?" The Justice
Department in Ottawa quickly
accepted the petition and
agreed to pay the legal
costs of an action in the
Supreme Court of Canada
of whichever lawyer the
five might choose. The highest
Canadian court heard their
case in the spring of 1928
and woodenly decided that
they were obliged to interpret
the BNA Act in light of
the legal conditions applicable
when it was first passed
in Britain in 1867. It was
then an easy step for the
five Canadian judges to
hold unanimously that it
was not intended for women
to sit in the Senate. It
was not in Emily’s nature
to accept defeat; she soon
resolved to carry the case
through the only stage left:
an appeal to the Privy Council
in imperial London. It was
largely because of her efforts,
as her biographer indicates,
that the "person case" did
not expire at this point.
The outcome of the final
appeal was hard to predict.
The Attorney-General of
Alberta supported their
position, but counsel for
the governments of both
Canada and Quebec argued
that the earlier decision
should be upheld.

The
Canadian Press reporter,
Lukin Johnson, wired a pithy
eyewitness account of the
polite legal fight underway
at number one, Downing Street:
"...five great judges, with
the Lord Chancellor of England
at their head, and a battery
of bewigged lawyers from
Canada and from England,
are wrestling with a question,
propounded on behalf of
their sex, by five Alberta
women.... Deep and intricate
questions of constitutional
law are debated back and
forth. The exact shade of
meaning to be placed on
certain words is argued
to the finest point. And
so it goes on, and probably
will continue to go on for
several days. At the end
of all these endless speeches,
lessons on Canadian history,
and questions by five great
judges of England, will
be decided, if one may hazard
a guess, that women undoubtedly
are Persons. Which one may
say, without exaggeration,
most of us know already!"

Three
months later, on October
18, 1929, the Lord Chancellor,
Lord Sankey, strode back
to the Court to deliver
the patently obvious and
unanimous decision: women
are Persons and are thus
able to become Canadian
senators. Significant history
had been made. Congratulations
came to Edmonton from around
the province and country.
Nellie McClung issued a
statement giving the full
credit for the victory to
Emily, who in turn tactfully
declared that in future
Canadian women could say
"we’ instead of ‘you’ in
affairs of State."

A
public campaign quickly
began for the leader of
the five to become the first
woman senator, but it was
not to be. Prime Minister
Mackenzie King appointed
Cairine Wilson from Ottawa
in 1930. The Alberta Five
received a bronze plaque
in their joint honour in
the Senate which was donated
in 1938 by the Federation
of Business and Professional
Women’s Clubs. In addition,
since 1979 five awards have
been made annually to Canadians
who have fought for sexual
equality. In fairness to
Mackenzie King, it would
appear that there was no
Alberta vacancy in the Senate
in 1929-30 before he lost
the general election. There
was no excuse whatsoever
for his successor as prime
minister, R.B. Bennett,
also an Albertan, for not
supporting Emily (who doubtless
wanted the appointment)
because an Edmonton vacancy
did occur in 1931. It was
simply sophistry of the
basest kind for Bennett
to refuse her on the basis
that the new senator must
be a Roman Catholic. Years
later, an Edmonton senator
probably provided the real
reason in quipping: "Oh,
we never could have had
Mrs. Murphy in the Senate.
She would have caused too
much trouble."

In
late 1931, Emily, aged 63
years, retired as a judge,
confiding to a friend that
she had promised her family
that she would retire after
fifteen years of service.
Policemen, bailiffs, librarians,
clerks, reporters, lawyers
-- all were sorry to see
her go. Perhaps sensing
that her health was going,
she wrote a farewell letter
to her family in late 1932
and placed it in her safety
deposit box. Twelve months
later, when she dropped
in to visit a court, she
had the quiet satisfaction
of hearing Eardley Jackson,
her enemy from her first
day on the bench, spontaneously
salute "the kindly smiling
countenance of this beloved
lady." That night, October
26, 1933, she died in her
sleep. As she had said long
ago when her daughter Doris
died, "life is lent and
not given." Her friend,
Nellie McClung, among countless
mourners around the world
spoke of her "burning love
of justice, a passionate
desire to protect the weak,
and to bring to naught the
designs of evil persons."